THE DOCTRINE OF JUDICIAL SUPREMACY. 


SPEECH 




CikT® 






OF 


CHARLES C. BONNEY, 


BEFORE THE 

American Bar Association, 


AT SARATOGA, NEW YORK, 


August 2 jy i88j. 


PHILADELPHIA: 

Press of George S. Harris & Sons, 718-724 Arch Street. 
1883. 








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THE DOCTRINE OF JUDICIAL SUPREMACY. 


SPEECH 


OF 


CHARLES C. BONNEY, 


BEFORE THE 


American Bar Association, 


AT SARATOGA, NEW YORK, 


August 2 j, i88j. 



PHILADELPHIA: 

Press of George S. Harris & Sons, 718-724 Arch Street. 

1883. 





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SPEECH OF CHARLES C. BONNEY. 


THE DOCTRINE OF JUDICIAL SUPREMACY 

I 

The paper read by Robert G. Street, of Texas, on “ How 
Far Questions of Public Policy may Enter into Judicial 
Decisions,” being under discussion, 

Charles C. Bonney, of Illinois, spoke as follows: 

Believing, as I do, that the doctrine of Judicial Supremacy 
is the rock on Avhich constitutional government rests, a sense 
of duty constrains me to protest against any attempt, in a 
body of which I am a member, to impair that foundation- 
stone of the superb superstructure that rests upon it. Let 
me therefore devote the few moments allowed by the rules of 
the Association, to an examination of the nature and extent 
of the judicial power, and of what I conceive to be the funda¬ 
mental error of the learned essayist’s position. It is one of 
the charms of our profession that we are trained to distin¬ 
guish between men and principles, and with only the kind- 
-liest feelings towards the man, wage the most vigorous 
opposition to the measure he supports. I, therefore, with 
great pleasure, pay the tribute of my admiration for ihe^ 
learning and ability displayed in the paper under con¬ 
sideration, while I dissent in toto from the conclusions 
reached. 

I think we will all agree that the application of the law to 
a state of facts, for the determination of a controversy, is a 
pure judicial function ; and that it is indispensable to the 
proper exercise of that function, that the court shall examine , 



4 


SPEECH OF CHARLES C. BONNEY. 


the law, and also the contract, if the proceeding rest upon an 
agreement, in order to ascertain and declare their meaning. 
Hence the construction and interpretation of laws and 
documents, and ‘the definition of their terms and meaning, 
is strictly and wholly within the judicial province, and in¬ 
heres in the very nature of the judicial power. Let us now 
take another « 6 tep. All the judicial po’wers are granted to, 
and wholly vested in the one Supreme Court, and such courts 
inferior thereto as the Congress may establish. No such 
powers are reserved, no. exception is made; hence we must 
conclude that no power of final construction, interpretation, 
and definition has been given to the executive and legisla¬ 
tive departments. That power, so wholly conferred upon 
the judiciary, must be exercised by them for all departments 
and agencies of the government. Executive and political 
officers may, in the first instance—and, indeed, must—form 
opinions of their powers and duties in relation to the matters 
upon which they are called to act; but they have no juris¬ 
diction and authority finally to determine the extent and 
limits of their powers under the Constitution. The supreme 
and final authority so to decide is vested in the courts, and, 
when exercised, binds all the agencies of the government. 
The President and Congress are bound by their official oaths 
to support and uphold the Constitution of the United States. 
What that Constitution requires can be conclusively deter¬ 
mined only by the judicial tribunals. If this were not the 
law, we should have the strange spectacle of the purse and 
the sword determining for themselves the extent of their ob¬ 
ligations and their powers. What patriotic executive or 
legislator would wish it so? Who would not rather desire 
to have some disinterested and impartial arbiter discharge 
that solemn responsibility? 

The theoiy of co-ordinate departments of government is' 
well enough in its proper place; but it gives no just warrant 


THE DOCTRINE OF JUDICIAL. SUPREMACY. 


for the claim that any department can properly exercise 
any power committed to another—which is the precise point 
under discussion—the exposition of the Constitution and of 
statutes enacted under it being judicial in its very nature, 
and granted, with all other judicial powers, to the courts 
by tlie express terms of the Constitution. 

But, for greater certainty, let us inquire what is the nature 
of legislative authority. It did not create human society, 
nor did it make the fundamental rules of jurisprudence. 
Botli existed before the legislative department of govern¬ 
ment was organized. Few of the rules that regulate human 
conduct wery framed by the legislative hands. The great 
body of them were evolved from the experience of man¬ 
kind, in the progress and development of civilization. 
Some have been added, and many modified by legislative 
enactment. 

The exercise of pure political power is the chief duty of 
legislative bodies. This includes municip^al corporations, 
elections, revenues, and appropriations. But they have also 
the power to establish new rules for future cases. They have 
not the authority to declare what the law is. That is a judicial 
function. We *are apt to forget how small a part of the whole 
body of existing law we owe to legislation. Let a single illus¬ 
tration suffice. T heard a. learned judge say of his court, that 
if the legislature should repeal every statute regulating its 
proceedings, he could nevertheless go on, under the consti¬ 
tutional grant of jurisdiction and the practice of the common 
law, and administer complete justice in all cases within the 
grant of the Constitution. 

Deriving our jurisprudence largely from the mother coun¬ 
try, we sometimes overlook differences which are fundamental. 
The doctrine of parliamentary omnipotence is radically dif¬ 
ferent from the American pringiple of separate and distinct 
departments of power. The British Parliament may, it is 


6 


SPEECH OF CHARLES C. BONNEY. 


claimed, change the succession of the crown, and by its 
House of Lords it exercises the judicial authority of last 
resort. But under the American system, the legislative, 
executive, and judicial departments of power are separated 
by fixed and permanent barriers, that cannot be passed with¬ 
out usurpation. The American Constitution is a new thing 
in practical government. Its unity and integrity are main¬ 
tained by the judicial sujwemacy it creates, and cannot other¬ 
wise be perpetuated. 

We are apt to overlook the inherent powers of the judici¬ 
ary, and to forget that “the court of equity is a fountain of 
remediesand that while it has no authorit}^ to create new 
rights, it has jurisdiction to recognize and enforce all that 
are regarded as such, and, in language ancient and eloquent, 
“will not suffer a right to be without a remedy.” 

The fundamental principle of our government is that the 
people, by their constituted agencies, may make what con¬ 
stitutions and laws they will; but that, having made them, 
the people must obey them while they stand. Tims the law 
is sovereign. No majority may rightfully disregard it. A 
child may invoke its protection against a multitude. The 
liberty of constitutional government is not the liberty to 
obey or disobey the laws according to personal or official 
pleasure or opinion; but it is the freedom to participate in 
making them; to act within the established limits; to change 
them in legitimate ways; and to enjoy the exercise of thought 
and conscience, unrestrained by human authority. 

Two radically different views of the judicial department 
of the government are presented. One regards the courts as 
created to settle controversies between individuals, and as 
practically excluded from participation in public affairs; 
the other deems the establishment of a supreme judicial au¬ 
thority, exalted above the control of political agencies, as the 
crowning excellence of our system, without which it could 


THE DOCTRINE OF JUDICIAL SUPREMACY. 


7 


not long endure, but with which it may contemplate the 
coming centuries without fear. 

It is rather to the natural growth and development of 
jurisprudence, than to the legislative authority, that we 
should look for the new rules that new emergencies may 
require. The doctrine of judicial evolution is fundamental 
to the common law, as well as firmly established by modern 
decision. It is one of the boasted excellencies of the common 
law, that it adapts itself by needful changes and enlarge¬ 
ments to new conditions as they arise; and I do not hesitate 
to declare that it is the fault of the courts, if needless techni¬ 
calities are retained after the reason for which they were 
invented has ceased to exist. The doctrine of judicial evolu¬ 
tion is clearly recognized by the Supreme Court of the United 
States, in holding that the power “to regulate commerce” 
extends to the telegraph and other agencies not dreamed of 
when the Constitution was formed. The learned e.ssayist 
referred to Jefferson’s dogma that words are to be under¬ 
stood in the sense they bore when they were used. But thus 
stated, this rule is a heresy, as well as a dogma, for it states 
but half a truth. The Constitution was made, not for the 
present, but for all the future, whether near or remote. If 
the illustrious.men who formed it had been asked the ques¬ 
tion, they would have declared with one voice that they were 
building for a great posteritjq and that the words they used 
were intended to expand with the growth and development 
of the country, and to meet new conditions and emergencies 
as they might occur. This is judicial evolution. Amendments 
to the Constitution, and new statutes have, indeed, been re¬ 
quired, to repeal provisions no longer needed, and to confer new 
rights and privileges. Such improvements are within the legis¬ 
lative domain; for, as I have already said, the courts have no 
power to confer new rights and privileges. Their authority 
is limited to the protection and enforcement of such as exist. 


8 


SPEECH OF CHARLES C. BONNET. 


We have listened to severe censures of judge-made law and 
judicial legislation. What is the meaning of these terms? 
Judge-made law consists of ju dicial expositi ons of the various 
doctrines of jurisprudence as found in, and illustrated by 
adjudged cases. Of this there is fortunately very much. 
Jud icial legisla tion consists of arbitrary rules, not existing 
in the nature of the relations involved, but asserted and ap¬ 
plied by the court without warrant of principle or of law._ 
Of this there is fortunately very little. Of judge-made law, 
the text-books on commercial law, the law of contracts, the 
law of common carriers, the law of evidence, and, without 
enumerating other branches, the jurisprudence, pleadings, 
and practice of equity, largely consist. We owe little in all 
these departments to legislative enactment. They are the 
result of the evolution and development of the law under 
judicial exposition. This is even more true of constitutional 
law. The human intellect has never reared a nobler edifice 
than the American system of constitutional jurisprudence. 
It has risen under the hands of its master-builders, with a 
harmony, strength, and beauty as fascinating to the lawyer 
and the judge as is the matchless Cathedral of Milan to the 
eye of an architect or a poet. But other subjects press for 
time and hearing, and I must close. If I have spoken 
earnestly, it is because my words have come from my lieart, 
and because I believe that the question to which I speak is 
vital to the best interests of this country. I close with a 
repetition of the noble tribute of the President’s Address to 
that greatest expounder of the Constitution, John ]\Iarshall. 
We cannot match his judicial expositions of the great powers 
of government, by any chapter of legislative achievement. 
The only legislative act worthy to stand in “fame’s proud 
temple” side by side with those expositions, is the famous 
ordinance of 1789. Distinguished by a far-reaching and 
almost superhuman sagacity, that act of legislation deserves 




THE DOCTRINE OF JUDICIAL SUPREMACY. 


9 


to rank with the Declaration of Independence and the 
national Constitution. 

For the reasons thus briefly given, I must dissent from 
the argument of our learned brother, that the legislative 
and executive departments of the government have the 
right to determine for themselves the extent of their powers 
and duties under the Constitution, and must hold that those 
departments are, and of right ought to be, bound and con¬ 
cluded by the judgments of the judiciary on all questions 
of constitutional authority. 

Let us encourage, rather than retard, the work of judicial 
evolution. Let us acknowledge and honor, rather than 
decry and seek to remove, that golden crown of constitu¬ 
tional government. Judicial Supremacy. 

Note. —A striking illustration of the practical operation 
of Judicial Evolution is afforded by the development of the 
police power of the state against the doctrine of the Dart¬ 
mouth College case. The contract rights of corporations 
still remain inviolable, but they are recpiired to hold and 
exercise them in subordination to the public welfare and 
safety. 

That judicial supremacy is an established fact may be 
shown b}^ a long line of decisions of the Supreme Court of 
the nation and of tlie highest tribunals of the several states. 
From almost the beginning of our system of constitutional 
government by distinct dei)artments of power, questions 
of the existence of limitation of legislative or executive 
authority have been submitted to the judiciary for final 
determination, and have been accordingly decided, with the 
general acniuiescence of all the departments of the govern¬ 
ment, and with tlie concurrence of the bar and the people. 
Attempts have, indeed, been made from time to time to 
establish an excejition in favor of the executive and legis- 


10 


SPEECH OF CHARLES C. BONNEY. 


ture, to decide for themselves the existence and extent of 
their powers and duties under the Constitution, but those 
attempts have not been successful. 

Judicial supremacy also clearly extends to the final deter¬ 
mination of the powers and rights and duties of the general 
government and the governments of tlie several states in 
relation to each other. C. C. B. 



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